ALOK SINGH, J. - (1.) THIS is a Second Appeal filed under Section 100 C.P.C., assailing the judgment and decree dated 12.08.1991 passed by learned District Judge, Godda, in Title Appeal No. 83/1963 (91/1986), Ram Shankar Choudhary & Ors. Vs. Sreemati Sitalo Devi & Ors. as well as judgment and decree dated 07.08.1963 passed by Subordinate Judge, Deoghar in Title (Partition) Suit No. 3/1961, whereby learned trial court has decreed the suit of partition of the plaintiff (herein Respondent No. 1) declaring that defendant No. 7 is entitled 1/2 share while plaintiffdefendant Nos. 1, 2 and 3 each are entitled to 1/10th share and defendant Nos. 4 and 5 are jointly entitled to 1/10 th share in property Schedule 'A'. Further declaring plaintiffdefendant Nos. 1, 2 and 3 each are entitled to 1/5th share in Schedule 'B' property and defendant Nos. 4 and 5 are jointly entitled to 1/5th share in Schedule 'B' property. First appeal, therefrom was also dismissed by the appellate court confirming the preliminary decree passed by learned trial court.
(2.) BRIEF facts of the present case, inter alia, are that plaintiff Respondent No. 1 had filed the suit for partition claiming onetenth share in schedule 'A' and onefifth share in schedule 'B' property. It has been contended that properties described in schedule 'A' were jointly possessed by late Motilal Choudhary and his father's brother Jagarnath Choudhary, while properties described in schedule 'B' were acquired by Late Motilal Choudhary, as an heir of his maternal grand aunt after some litigation. Motilal Choudhary had expired in the month of December, 1960 leaving behind his widow defendant No. 3, his two sonsdefendant Nos. 1 and 2 and plaintiff, his only daughter and two minor sons of his predeceased daughter, defendant Nos. 7 and 8. Defendant No. 9 is the son of his brother Late Jagarnath Choudhary and defendant Nos. 4 and 5 are minor sons of defendant No. 1Ram Shankar Choudhary and defendant No. 6 is the minor son of defendant No. 2 Harihar Choudhary.
(3.) DEFENDANT Nos. 1, 2 and 3, sons and widow of Motilal Choudhary had filed joint written statement, taking defence that Late Motilal Choudhary in his lifetime was pleased to divide his properties between his two sons, Rameshwar Choudhary and Harihar Choudhary and had reserved only 5 bighas of cultivable lands and some homestead land for himself and his wife. It has further been contended that a memorandum of partition was executed by Late Motilal Choudhary, Ext. E, in the year 1952 and property stood divided prior to the enforcement of Hindu Succession Act, therefore, property was not joint on the date of institution of the present suit as well as on the date of enforcement of Hindu Succession Act and consequently plaintiff has absolutely no share in the property already divided by father, Late Motilal Choudhary between his two sons.;